Vergara, Mark Daniel: The State of Philippine Music and Current Legal Challenges

I. Introduction

Traditional Philippine Music

The music of the Philippines in general are performance arts composed in various genre and styles from a mixture of indigenous countries and cultures like Asian, European, Latin American, and American. [1]

The country boasts of a rich heritage in music which has existed during pre-colonial and post colonial times. The Kulintang for example, which is popular and played by Muslim Filipinos during pre-Spanish colonization in the 16th century.[2] The Harana or Kundiman, a lyrical song made popular in the Philippine Islands, which dates back to the Spanish period, whose lyrics depict a romantic theme, usually portraying love, passion, sadness, or in other styles based on a love story.[3] The Cariñosa (meaning loving or affectionate one), is a Philippine national dance from the María Clara suite of Philippine folk dances, where the fan, and handkerchief plays an instrument role as it places the couple in romance scenario.[4] The Tinikling, a Philippine dance which involves two individual performers hitting bamboo poles, using them to beat, tap, and slide on the ground, and against each other in co-ordination with one or more dancers who steps over, and in between poles.[5] And the Rondalla, which is performed on ensembles comprising mandolin instruments of various sizes called bandurria composed on the Iberian tradition.[6] All of the genres and styles mentioned still exist and patronized by the traditional niche audience.

OPM Music

Original Pilipino Music, now more commonly termed Original Pinoy Music or Original Philippine Music, (frequently abbreviated to OPM) originally referred only to Philippine pop songs, especially those in the ballad form, such as songs popularized in the 1970s through the present by major commercial Philippine pop music artists like Pilita Corrales, VST & Co., Ryan Cayabyab, Basil Valdez, Eraserheads, Freddie Aguilar,Rey Valera, and APO Hiking Society.[7]

OPM pop has also been regularly showcased, up to the present in the live band scene. In the passage of time as well as the development of many diverse and alternative musical styles in the Philippines, the term now refers to any type of Original Philippine Music created in the country or composed by individuals of Philippine extraction, regardless of location at the time when composed are considered OPM, and the lyrics may be in any Philippine languages or dialect.[8]

In recent years, OPM have been located in Manila, where Tagalog, and English are the dominant languages. Other ethnolinguistic groups such as the Visayan, Bikol, and Kapampangan, despite making music in their native languages are not recognized in the OPM category. Multiculturalism advocates, and federalists often connect this to the Tagalog cultural hegemony of the capital city of Manila.[9]

Having successfully created a subgenre of Philippine Rock they called Bisrock, the Visayans by far have the biggest collection of modern music in their native language, following suit are the Kapampangans.[10] Despite the growing clamor for non-Tagalog, and non-English music, and greater representations of other Philippine languages; the local Philippine music industry, which is located in Manila, is still skeptical in making investments. Some of their major reasons include the language barrier, the still-small market, and the demonization of regionalism in the Philippine Islands.[11]

II. State of the Local Music Industry

From vinyl records, cassettes, cds, dvds and online media, the music industry has evolved its form in sync with technology throughout the years. Technology has also enabled piracy to take on many forms. Piracy of films and music in one form or another had existed since the technology for reproduction became easier and cheaper. In the 1970‘s, when the cassette became a popular musical format, it opened up a whole new market for portable music. Soon, tape recorders became cheap and easily accessible to the public, and while that increased the demand for products, it also brought with it the problem of pirated music cassettes.[12] Today, digital copies of songs and videos stored in CD or DVD format can be brought at a low price among tiangges in Quiapo, stalls inside malls, and just about anywhere where market is available. These pirated CD’s and DVDs are produced in massive quantities by high speed duplicating machines.[13]

In order to mitigate this existing problem, the OMB (Optical Media Board), (originally Video Regulatory Board),[14] a special agency through created by the government with the concerted effort of artist, for the purpose of preventing unauthorized counterfeiting and duplication of original copies of films and music.

Because of piracy and duplication, local music production was severely affected. In 1996, a hit album could sell 10x platinum, 1 platinum being equivalent to 40,000 copies. By 2001, a double platinum was considered a big hit. In 2002, the bench mark for a platinum album was reduced to 30,000 copies by the music industry.[15]

While piracy continued, the numbers of internet users have risen from 2,000,000 to 14,000,000 in just a span of 8 years (2000-2008).[16] The popularity of the internet paved way as an opportunity for the economy as well as the music industry. The industry now has a better reach to their audience, which also gave artists the prospect to thrive on advertising and promotion. Artists have opted to create websites and join free social networking sites to provide more than just updates and information about themselves, but also included, free streaming and sometimes downloads for free as well.

However, the internet can be both of a good thing and a bad thing. Millions of songs all over the globe, including local music, ripped from original albums are continuously uploaded by unknown users for their unlawful distribution, sharing, downloading, and streaming in the internet. Peer to peer sites offers high speed file sharing, social networking sites allows private users to create links, or upload songs and videos available publicly for streaming. Live recordings of performances captured by fans on video and audio are uploaded in popular sites like Youtube. All of these acts are being committed without the artists’ consent that it has become so prevalent and common that most artists have already become passive and tolerated such practices. Some have also accepted to view these acts positively in a way as free advertising and promotion.

Artists may seem to react oddly in addressing existing circumstances like piracy and illegal downloading. In 2000, Filipino artists Rivermaya released an album entitled “Free”, where thousands of copies, including free downloads were given away and made available to visitors of top Philippine and Asia-based websites. Taken from the official statement of Rivermaya, “The ‘free’ thing, although really extreme, just shows that with the internet, artists can set the price they want for their music. If this thing works for musicians like us, it will be a great way of putting out music and choosing how it will reach your friends and fans.”[17] The move was to advance themselves and reach not just the local fans but those outside the country as well.

International artist Nine Inch Nails took a similar move for their latest album “The Slip” made available for free download on their website [18] but have reportedly to still have garnered $1.7 Million in record sales.[19]

III. Current Issues

Early this year, Gary Granada a public school tutor (University of the Philippines) of a masteral subject in Development Communications and a board member of FILSCAP,[20] filed a suit against GMA network alleging that the latter infringed his copyrighted work by using his original study without his consent. GMA on its answer claims that Gary Granda was commissioned to create the study and that the same should be treated as a collective work. According to Granada’s posted audio recording on the internet, the same was not a collective work, and sole authorship should be attributed to him alone.[21]

On the facts given by Granada, the study was allegedly abandoned by the network, creating a new one instead, using his original study as a template.[22] His claim now presents an issue whether the new musical arrangement intended for the “Threepid Handog Edukasyon ng Procter and Gamble.” commercial of GMA is a derivative work of Granada’s original study, and falls under the definition in Sec. 173 of the Intellectual Property Code. Assuming however that it is a derivative work, is GMA liable for the said claim?

In another issue, according to news posted October 29, 2008 from Inquirer.net, popular band Rivermaya has parted ways with its manager Liza Nakpil, over the controversy regarding the ownership of the Rivermaya trade name. In an article posted October 5, 2009 in the Manila Bulletin website, the IPO issued its decision regarding the matter and upheld that the same is registered in the name of Liza Nakpil being the first to file for its application for registration.[23] Rivermaya through Mark Escueta, who is a present member of the band, insists that the tradename is and should be originally attributed to its original members namely, Bamboo Manalac, Perf Decastro, Nathan Azarcon and Rico Blanco who formed the band in 1993. At present the band is composed of Mark Escueta, Japs Sergio, Mike Elgar, and Jayson Fernandez. Nakpil registered the “Rivermaya” trademark with the IPO on July 7, 2008. Escueta, Sergio, Elgar, and Fernandez filed an opposition to the ownership of the said trademark on October 21, 2008.[24]

IV. Legal Remedies

The music industry is not made hapless by the exigent circumstances present. There are various legal alternatives offering different alternatives that could cater to the artists’ requirement for protection of their original works.

Licensing for example, not just for the protection of the artists but for the benefit of the public as well, enables the latter to distinguish works that can be legally distributed, or used whether limited only to non-commercial, or commercial purpose. The licensor may grant license under intellectual property laws to authorize a use to a licensee, sparing the licensee from a claim of infringement brought by the licensor.[25]

Licensing is available for free. Creative Commons, is a nonprofit corporation that provides free licenses and other legal tools to mark creative work with the freedom the creator wants it to carry, so others can share, remix, use commercially, or any combination thereof.[26] Famous international band Nine Inch Nails, as well as independent local artist like Drip has availed of the free licensing by Creative Commons.

FILSCAP on the other hand, is a non-stock, non-profit association of composers, lyric-writers and music publishers established in 1965 to administer the public performance, mechanical reproduction and synchronization rights granted by law to creators and owners of original musical works.[27] FILSCAP has made possible and easier the collection of royalties due to artists for the performance and playback of copyrighted music on commercial establishments like restaurants and stores in the country. Royalties from license fees collected by FILSCAP, after deduction of administration costs, is distributed annually to its members and affiliated societies whose works were performed, reproduced or synchronized during the year.[28]

With regard to protection on trademarks, the Rivermaya and Nakpil issue serves as hindsight. Artist names and band names after all are trademarks and rights that can be protected. However, unlike copyright, it is not protected upon creation, but requires an application for its registration and protection as provided for by law. Registration on trademarks follows the first-to-file priority in right rule.[29] Trademark rights are granted to the first to use the trademark and/or first to file a trademark application.[30] In recent events worth mentioning, the emo/punk/rock band ChicoSci decided to change the name Chico Science to ChicoSci, in order not to be confused with the Brazilian singer (aka Francisco de Assis França [31]) using the same name.[32]

Foreign laws could also serve as precedents in legislation and implementation of laws and legal remedies, specially those relating to illegal downloading and sharing. In Europe the “three strike model” has already been implemented in most of its countries. The proposed legislation operates under a “three strikes” system. A new state agency would first send illegal file-sharers a warning e-mail, then a letter and finally cut off their connection if they were caught a third time.[33] The rule however was not implemented in Germany by reason of privacy issues and laws.[34] If it would deem fit, feasible, and compatible with our existing laws, it can be adopted in our country through effective lobbying for legislation.

Conclusions

Despite the prevailing negative circumstances surrounding the industry, the local artists remain optimistic especially those in the OPM scene. OPM has never been more alive until now, and may be considered even better compared with the 1990s where bands in the Philippines were just starting to surge through the music scene, gaining support from Filipinos at a scale they have yet to enjoy.[35]

The influx of pinoy bands at such time, including but not limited to the Eraserheads, Rivermaya, Wolfgang, Fatal Posporos, Keltscross, Color it Red, Sugar Hiccup, and Put3ska as well as the flourishing number of venues for live gigs such as Club Dredd and Mayric’s are accurate indicators that OPM songs as delivered by these rock bands have found a steady, sturdy following.[36]

Today, there is a noticeable increasing number of hopefuls, aspiring bands and new artists. Independent labels like Terno Records are able to produce on its own unique talents worth mentioning like Up Dharma Down, which was also critically acclaimed by Lara Day in the Time Magazine feature “The Way of Dharma” in 2007.[37]

More and more musicians are also coming out of their regional turf and sharing their craft to the rest of the country. Yet another proof of how self-sustaining the Philippines is, we simply never run out of more Filipino artists with more to share. Among those that hail from the provinces are Typecast, which comes from Laguna; Urbandub from Cebu; and Gayuma, from Batangas.[38]

The country’s music industry was able to survive regardless on the insufficient legislation and support from the government. It carries with it a lot of potential and hope. With just enough legal tools and implementation to arm and guide our country’s notable artists the protection they deserve, it may only take a few years before this become a booming industry that will contribute significantly to save our ailing economy.

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These articles were submitted/posted by students enrolled in Arellano University School of Law's "Technology and the Law" subject under Atty. Michael Vernon Guerrero. Availability of these articles in this website does not constitute endorsement nor a guarantee of the correctness, accuracy, and the like, of their contents.

Contents of the articles do not provide legal advice. Perception of the authors on the subject matters may have changed over time.